Professional Documents
Culture Documents
ORDER
CRIMINAL LAW II
1|Page
ACKNOWLEDGMENT
I thank ------------------- for assistance, and for comments that greatly improved
the manuscript, who gave me the golden opportunity to do this wonderful project
on the topic , which also helped me in doing Research and I came to know about
so many new things.
Secondly I would also like to thank my parents and friends who helped me a lot
in finalizing this project within the limited time frame.
2|Page
ROLE OF EXECUTIVE MAGISTRATE IN MAINTAINING PEACE AND
TRANQUILITY
BACK GROUND:
This code has been modified from time to time by various Acts of central and
state legislatures. In addition to several changes, the provisions of the 1898 Code
remained virtually unchanged through the decades and no attempt was made to
have a complete overhaul of the old code until the Commission of the central law
was implemented in 1955.
A detailed report for the revision of the Code, namely the first report Forty, was
introduced by the Law Commission in 1969. One of the main recommendations
3|Page
of the Commission is to ensure the separation of the judiciary from Executive on
all India basis in order to achieve uniformity in the matter.
Collector
Joint Collector
Tahsildar
The above Officers are appointed as Magistrates by virtue of the Offices held by
them as noted against each.
4|Page
Designation of the Officer Appointed as Local Jurisdiction
(1) (2) (3)
Additional District Magistrates are not allowed to issue a detention order under
law on preventive detention and NASA. All other executive magistrates as Addl.
district magistrate must be subordinated to the district magistrate. And every
executive magistrate (other than S.D.M) exercising powers in a sub-division is
also subject to the Sub-division magistrate, subject, however, the general control
of the district magistrate.
District Magistrate may from time to give special orders, in accordance with this
Code, as to the distribution of cases between the subordinate executive
magistrates to him and the assignment of cases to an additional district
magistrate.
Under Article 21 Cr.P.C. the State Government may appoint, for the term they
deem fit to be known as "The special executive magistrates" for specific areas or
for the execution of specific functions and give this special
The executive magistrates, such powers as are conferrable under the code.
Under Section 2 of the Cr.P.C. the local jurisdiction of the Executive Magistrate
is determined by the District Magistrate, subject to the control of the State
Government, within which the Executive Magistrate may exercise all or any of
the powers invested under the code. Unless so determined, the jurisdiction and
powers of every such Magistrate shall extend throughout the district.
The Executive Magistrates, other than the Addl. District Magistrates, shall be
Subordinate to the District Magistrate and every Executive Magistrate (other than
the Sub Divisional Magistrate) exercising powers in a Sub Division shall also be
subordinate to the Sub Divisional Magistrate, subject to the general control of the
District Magistrate. The District Magistrate may make rules or give orders, from
time to time, as to the distribution of business among the Executive Magistrates
subordinate to him and as to the allocation of business to an Additional District
Magistrate.
6|Page
OBJECT OF 107 Cr.P.C.:
The main purpose of this section is "preventive, not punitive." This section is to
allow the Executive Magistrate to take steps to prevent the commission of
offenses involving a breach of the peace or disturbance of the public tranquility.1
PROCEDURE:
"I have carefully read the FIR and the relevant material placed before me and I
am convinced that there are sufficient grounds to sue U/s 107 Cr.P.C.2,
I have perused the FIR along with the relevant material placed before me and I
am satisfied that there are sufficient grounds to initiate action U/s 107 Cr.P.C.
Taken on file. Issue Order U/s 111 Cr.P.C with summons U/s 113 Cr.P.C.
Before initiation of the action U/s 107 Cr.PC, we must ensure that the FIR
contains the brief facts of the case, the people involved, addresses, etc., and the
list of PG and also property directions to decide the amount of bail to be set.
When all these things are available and satisfaction by the executive magistrate
as indicated above, it makes an order in writing to U/s 111 Cr.PC, setting out the
substance of the information received, the amount of the deposit to run and direct
Summons U/s 113 Cr.P.C., shall be accompanied by a copy of the order made U/s
111 Cr.P.C.
A date and time when all respondents are present, the content of Article 111
Cr.PC, are read or explained U / 112 Cr.PC and curious / ask each respondent
admits the offense / illegal act has been committed by him and if he refuses the
return of offense / wrongful act charged against him, so he should be in writing in
the prescribed form and his signature is duly attested by the executive
magistrate.4
Religious Processions
Festivals
Elections
Political Movements
Cr.P.C.
The information should not be the police only. It may also be public. Only new
incidents of breach of the peace or disturbance of public tranquility as misguided,
evil, etc., must be taken into account. Older incidents are useful only to prove the
existence of enmity between the opposing parties, but they give no support to the
theory that there is an imminent danger to peace. Convictions on new incidents,
strengthens the case of U/s 107 Cr.P.C.
When FIR with its enclosures are received, the Executive Magistrate shall make
his first with the date and time of receipt and the way it was received. ie, either in
person or by mail. FIR and pens, Received for action 5
U/s 107 to 110, 145 to 147 should be immediately examined and no defects, take
the case under the relevant provisions of Cr.P.C. If there are defects, it can be
returned for correction and resubmission.
An order of U/s 107 Cr.P.C. happened when the executive magistrate is of the
opinion that the information received by him to the effect that any person is likely
to commit a breach of the peace or disturb the public peace is credible.
Commission of a single offense or isolated at any given time does not justifys
shares U/s 108 Cr.P.C.
It deals with a person who is coming within the limits of an Executive Magistrate
jurisdiction and is taking precaution to conceal his presence with a view to
committing a cognizable offence.
Before applying Sec. 109, the executive magistrate should see two things needed:
-
The person is careful to hide his presence; and concealment must be to commit
an offence. 6
PROCEDURE:
6 Ram Birich Ahir, 1926 6 PAT 177, 183 AIR 1926 PAT 569.
10 | P a g e
In respect of the above Sections, the Executive Magistrates should direct the
Respondents to execute bonds for a period not exceeding one year with or
without sureties for the cases7 initiated U/s 108, 109 and for a period not
exceeding 3 years in respect of section 110 Cr.P.C.
The procedure as laid down U/s 107 Cr.P.C. is applicable in these cases also i.e.,
issue of Order U/s 111 Cr.P.C. etc.,
If, when so ordered, as a whole does not disperse, or are not controlled, it leads to
indicate a desire not to disperse any Executive Magistrate or police officer
referred to the Sub Section (1) may proceed to disperse such assembly by force
and may require the help of a male person, not being an officer or member of the
armed forces and acting as such, in order to disperse this assembly, and if
necessary, stop confining people who are part of it, to disperse the assembly or
can be punished by law.
The police must ensure the presence of an executive magistrate where a breach of
the peace is expected. The executive magistrate obtained the power to give the
7 Hari Telang, 1900 27 Cal 781.
To disperse the crowd, the agent gives a clear warning before the use of tear gas
or lathis. If the crowd did not manage to disperse, despite the warning, the
cooking can be given. The police officer decides the minimum laps to cook.
Cooking objective must remain low and directed against the most threatening
part of the crowd. Files or sections controlled fire must immediately unload after
cooking without further watchword until the order to cease fire was finally given.
The cooking must be stopped the movement of the crowd dispersed from the
scene. Cooking must be done from a distance sufficient to avoid the risk of being
cast out and to help limit the fire control must be maintained.
The authorization of the executive magistrate is necessary in case the police are
obliged to disperse the crowd in different locations of the same village.
Riot flags should be taken when the military reserves are called in the fear of
disruption and before cooking or any other means of dispersion is resorted to
should be hoisted in front of the crowd in a position in which the inscriptions on
them are clearly visible.
Section 144 Cr.P.C. to be made use of for the prevention of disorders, disorders
and disadvantages, and to ensure the public good. The restrictions provided for in
Article 144 Cr.P.C. is anticipatory. anticipation restrictions are imposed particular
The order will specify the period for which they remain in force and the area
covered by it. This order can be maintained in force for a maximum period of two
months and if the state government is satisfied with the prevailing condition,
This is the provision usually use in order to avoid problems and to maintain
public peace and the existing law and order during the celebrations of Moharum
or other festivals or hold meetings processions passing along the way public
prohibiting the assembly of five or more people carrying weapons or deadly
weapons, including knives, sticks, stones, bricks, etc. 19
When the situation is very serious apart from Section 144 order, prohibiting the
assemblies etc., armed forces are called out to maintain Law and Order. In some
situations CURFEW restricting the movement of public is also imposed and legal
provision under which the prohibitory orders of CURFEW are issued also to be
only U/s 144 Cr.P.C.
In 1969 law commission report which talks about one of the main
recommendations of the Commission is to provide for the separation of the
Judiciary from the Executive on all India basis in order to achieve the uniformity
in this matter. Now in CrPC there is an allocation of magisterial functions
between two categories of Magistrates, Judicial" under the control of High
Court and Executive" under the control of State Government.
In every district and in every metropolitan area, the State Govt. may appoint as
many persons as it thinks fit to be Executive Magistrates and shall appoint one of
them to be the District Magistrate. The State Govt. may appoint any Executive
Magistrate to be an Additional District Magistrate, and such Magistrate shall
have of the powers of a Dist. Magistrate under this Code or under any other law
for the time being in force as may be directed by the State Govt. Whenever, in
consequence of the office of a Dist. Magistrate becoming vacant, any officer
succeeds temporarily to the executive administration of the district, such officer
shall, pending the orders of the State Government, exercise all the powers and
perform all the duties respectively conferred and imposed by this Code on the
District Magistrate .
Under the Criminal Procedure Code wide powers have been conferred on an
Executive Magistrate to deal with emergent situations. One such provision deals
with the Magistrates powers to impose restrictions on the personal liberties of
18 | P a g e
individuals, whether in a specific locality or in a town itself, where the situation
has the potential to cause unrest or danger to peace and tranquility in such an
area, due to certain disputes.
The function exercisable by the executive magistrates under the code may be
executive , administrative or judicial but when acting under any law other than
Crpc they can exercise only executive or administrative function .
Under the code of criminal procedure executive magistrate have a wide power for
deal with the emergent situation. Executive magistrate are generally not
competent to take cognizance of an offence or to hold trail of an accused charged
with an offence . in this context reference may be made to section 21 of the
bonded labour system abolition act 1976 which authorises state govt to confer on
an executive magistrate the powers of a judicial magistrate .
There is a broad divide between the powers conferred and powers conferrable by
or under the code on the executive magistrate. The powers conferred by the code
on the executive magistrate are the powers which are attached to the post of
executive magistrate. Any person appointed as executive magistrate is entitled to
exercise such power. The power located under section
107,108,109,110,129,145,147 etc. is the instances of such powers. There are not
power conferrable on the executive magistrate thought they may be conferred on
others like the commissioner of police under sec 20 sub sec (5). There are other
provision in the code such as section 133,143,144, which may be said to be
conferrable powers under the code . the executive magistrate cannot exercise
such powers unless they are empowered in this behalf.
19 | P a g e
are various fetters on its exercise so as to prevent any arbitrariness or unfairness
in the order. The fact that the High Court can review the order of a Magistrate
under this section makes the exercise of this power more rational. now days the
increasing cases of riots and other incidents ruining public peace and tranquility
has made it mandatory for the Magistrates to have such powers so as to secure
the common people the safety and peace which is essential for their living.
LIST OF CASES
20 | P a g e
[5] Gajanand, 1943 Nag 609; AIR 1943 Nag 88.
[7] Ram Birich Ahir, 1926 6 PAT 177, 183 AIR 1926 PAT 569.
22 | P a g e